1. Numerous complaints and information from government and private sources
required the Inter-American Commission on Human Rights (the "Commission,"
the "IACHR" or the "Inter-American Commission") to prepare
an analysis of the conditions of imprisonment in Colombia. Numerous and serious
problems within the prison system led the Commission to characterize, in the
press release it published following its on-site visit, "deplorable prison
conditions" as one of the most worrisome aspects of the current human rights
situation in Colombia.( 1 )

2. Article 5 of the American Convention on Human Rights (the "Convention"
or the "American Convention") applies to people deprived of their
freedom and establishes the right of all people to "physical, mental and
moral integrity." Torture and cruel, inhumane or degrading punishment or
treatment are prohibited. Article 5 establishes additional special guarantees
for persons deprived of their liberty, based on the fundamental principle that,
"[a]ll persons deprived of their liberty shall be treated with respect
for the inherent dignity of the human person." These guarantees include,
for example, the obligation to separate accused persons from convicts. Article
7 of the Convention includes provisions regarding the circumstances under which
a person may be detained and held. There also exist instruments pertaining to
detainees adopted within the context of the universal system for the protection
of human rights. For example, the United Nations International Covenant on Civil
and Political Rights, Standard Minimum Rules for the Treatment of Prisoners(
2 ), and the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment( 3 ) establish
standards and norms for the treatment of detainees.

3. As regards domestic law, the Political Constitution of Colombia establishes
the right to freedom and regulates the conditions of imprisonment.( 4
) It also prohibits torture and "cruel, inhumane or degrading treatment
or punishment".( 5 ) Parallel provisions exist in the
legislation. For example, the Code of Criminal Procedure establishes that all
detainees deprived of freedom "shall have the right to treatment which
respects their human rights, including the right not to be subjected to cruel,
degrading or inhumane treatment."( 6 )

2. The Current Prison Situation

4. Based on its on-site visit, the Commission was able to determine that the
human rights of people detained in Colombia have not been respected. Based on
its visit to Cárcel Modelo prison in Bogotá, for example, the Commission concluded
that the conditions in said prison constitute cruel, inhumane and degrading
treatment of detainees.( 7 )

5. A crucial element of these human rights violations is prison overcrowding.
By mid-1997, the Colombian prison system housed more than 40,000 detainees in
176 prison facilities designed for 28,000 persons. Approximately half of the
detainees had not been sentenced and were awaiting final sentencing. In most
cases, contrary to norms in effect at the time, these detainees were housed
with people who had already been sentenced. Services and minimum rights (access
to medical and legal services, outdoor privileges, access to employment, family
visitation, access to sports and libraries) are difficult to obtain and, in
many cases, can only be secured by paying prison personnel or the hierarchical
chain of prisoners who, through tacit or explicit delegation by the guards,
control parts of the prison. Such conditions cause violence and crime within
the facilities, lead to frequent riots, destroy motivation for rehabilitation,
and push prisoners into a world of violence and unlawfulness.

6. The Colombian authorities acknowledged this situation in meetings with the
Commission during its visit to Colombia and have explained the various measures
that are being implemented to alleviate it. However, the scope of the problem
is such that only decisive judicial, legal and administrative action can produce
a qualitative improvement in the general situation. The Commission would like
to emphasize that despite the difficulties, there are prison system authorities,
guards, and personnel who do implement innovative measures and demonstrate personal
initiative, with dedication and altruism, in an attempt to resolve specific
situations.

7. At the same time, the Commission received repeated information regarding
corruption in Colombian prisons that affects the human rights of the detainees.
For example, with respect to the delegation of authority over certain areas
to "internal chiefs", complaints were received which indicated that
mini-fiefdoms had been created which possessed de facto authority and which
charged fees for access to services, protection, etc. The Commission also received
information regarding corruption in food contracts, which leads to the deterioration
of the already minimal food standards. Furthermore, complaints were received
regarding systems of illegal charges by unscrupulous government officials for
the authorization of statutory detainee rights.

8. An investigative commission of the Congress of the Republic has noted, in
relation to the prison crisis, that:

the multiple manifestations of violence and non-conformity present in the
country’s prisons are a clear demonstration of the Government’s lack of preparedness,
reflected in a series of factors such as the absence of a clear and appropriate
criminal policy, the current socioeconomic, political and institutional crisis
affecting the country, and the slow processing and high level of impunity associated
with criminal cases handled by the Colombian justice system.( 8
)

9. In her interview with the Commission, then Minister of Justice Almabeatriz
Rengifo acknowledged the serious overcrowding conditions in the prisons and
the Government’s reluctance to invest resources in sustaining the infrastructure
of the common prisons and penitentiaries, favoring instead the construction
of high security facilities and special imprisonment centers. At the same time,
the Government demonstrated its commitment to promoting integral reform of the
Colombian justice system within one year, particularly in the area of criminal
law. Other governmental measures are being implemented, as described later in
this Chapter.

10. The unequal investment in different categories of prison centers implies
that prison conditions vary from one facility to another. The Commission was
able to conclude, for example, in its visit to the maximum security prison in
Itagüí, that conditions in this facility comply with prevailing international
standards. The Commission highlights the effort made by the Government to guarantee
the human rights of all prisoners detained there. Nevertheless, the Commission
is concerned with the marked difference which currently exists between the maximum
security detention centers--where leaders of criminal groups are detained, including
armed dissident groups and drug trafficking cartels--and the centers where the
majority of prisoners are detained.( 9 ) The Commission believes
that the Itagüí prison should serve as a model for other prison facilities.

B. PRISON OVERCROWDING

11. Overcrowding dominates penal facilities. The average overcrowding rate
for the entire system is 142%, but this figure reaches 332% at the Bellavista
detention center, where 4,980 people live in a facility designed for 1,500 people;
275% in Villahermosa, where 2,514 detainees live in a facility with a capacity
of 914 people; and 222% at the Cárcel Modelo in Bogotá, which houses 4,275 prisoners
in a prison designed for 1,920.

12. Statistics demonstrate that this overcrowding is neither chronic nor unsolvable.
In fact, although overcrowding was 14.17% in 1990, this situation had ceased
to exist by 1992. Since that time, however, overcrowding has again begun to
increase.

13. The Commission witnessed horrific examples of overcrowding at the Cárcel
Modelo prison and observed the conditions endured by prisoners in four patios
and five special pavilions. The Commission viewed 30-square-meter rooms where
approximately 80 people lie or sit. The Commission was also shown the spaces
between roofs and ventilation ducts used for sleeping. The Commission also noted
deficient sanitary services and saw the high-security cells where dozens of
individuals are locked away for days without being allowed out.

14. The distortion of the prison investment policy, as mentioned above, aggravates
the overcrowding situation. Between 1995 and 1997, investment favored the "high
security pavilions," which house 400 "privileged" detainees who
received 10 times more prison investment per capita than did the remaining 42,000
detainees.( 10 )

15. By the end of 1997, there were 19,812 detainees who had not been sentenced
and 23,409 who had been sentenced. In other words, 45.85% of the prison population
was comprised of people who had not been sentenced but had been deprived of
their freedom.

16. Colombian legislation and practice provide special provisions for preventive
detention as a security measure, which makes it difficult to apply alternatives
such as house arrest.

17. Article 388 of the Code of Criminal Procedure authorizes prosecutors to
apply security measures based on mere suspicion in most cases. When the public
prosecutor decides to dictate security measures, these usually consist of pre-trial
or "preventive" detention. For cases which are processed by the regional
justice system, the only security measure permitted is preventive detention.(
11 )

18. The Commission has also received information indicating that not all defendants
receive the same consideration when security measures are being imposed. According
to this information, for example, those defendants with more resources or more
influence have a greater likelihood of obtaining house arrest instead of preventive
detention.

19. Once preventive detention has been ordered, it is extremely difficult for
detainees to secure their freedom while awaiting trial. The Code of Criminal
Procedure does allow pre-trial release under certain circumstances.( 12
) However, the Commission has received information which indicates that there
is a "systematic tendency" to not grant requests for liberty even
when the objective requirements for such a ruling have been fulfilled.( 13
)

20. Access to the habeas corpus recourse as a mechanism for questioning the
legality of preventive detention and obtaining freedom is also restricted. Colombian
law requires that this writ be lodged before the same public official who the
detainee believes caused his/her illegal detention. Furthermore, according to
various studies, filing a request for habeas corpus is interpreted by some prosecutors
as constituting an indication of guilt.( 14 )

21. The Commission understands, as has been reiterated on many occasions,(
15 ) that preventive detention is a special measure which
should only be applied in cases where reasonable suspicion, and not mere presumption,
exists that the defendant may flee from justice or destroy evidence. If preventive
detention is utilized without meeting these standards, the principle of innocence
and the detainee’s right to physical liberty, as protected in Articles 5 and
8 of the Convention, are violated. These rights are frequently violated in Colombian
penal proceedings.

22. The violation of the rights of accused persons in detention are compounded,
not only by the illegal and immoral physical conditions of confinement, but
also by the extensive duration of trials which can easily go on for two or three
years before a sentence is reached, in violation all of the time periods set
forth in Colombian law. The defendant is usually detained throughout the whole
process, even when acquitted in the first instance.( 16 )

23. Despite the fact that the number of judicial personnel almost doubled between
1985 and 1996, the average trial period is still approximately 1,000 days.(
17 ) The lack of public prosecutors and the difficult situation
of all defense attorneys contribute to the delay. In recent years, more than
200 trial attorneys have been assassinated for exercising their profession.
Trials usually last even longer if pressure is not exerted by a defense attorney.

24. The Code of Criminal Procedure guarantees pre-trial release when the established
time periods for the penal proceedings have been exceeded.( 18
) Nevertheless, pre-trial release has been restricted even in these cases. Faced
with collective judicial action by millions of defendants whose legal time periods
had been exceeded, prior administrations have declared states of emergency to
keep these individuals in prison.

25. Keeping an accused person in pre-trial detention without finalizing the
trial for periods "beyond the limits strictly necessary to ensure that
he will not impede the efficient development of the investigations and that
he will not evade justice," violates the presumption of innocence guaranteed
in Article 8(2) of the Convention and the right to trial within a reasonable
time period, established in Articles 8(1) and 7(5) of the Convention.( 19
)

26. According to a May 1997 report by the Superior Council of the Judiciary,
another reason for the overcrowding is the difficulty of processing requests
for parole by sentenced detainees. Parole is a benefit which sentenced prisoners
may request after having served a set portion of their sentence with good behavior.
The difficulty is due in part to the fact that, in accordance with the current
Code of Criminal Procedure, requests for parole must be made to the Courts for
Execution of Sentences.

D. JOINT IMPRISONMENT OF DEFENDANTS AND CONVICTED PRISONERS

27. The Commission received many complaints regarding the fact that accused
individuals are usually imprisoned with convicted prisoners. The Commission
was able to confirm that this situation exists during its visit. This situation
openly violates both the provisions of Colombian domestic law and the provisions
of the American Convention.

28. Article 5(4) of the Convention explicitly states that "[a]ccused persons
shall, save in exceptional circumstances, be segregated from convicted persons,
and shall be subject to separate treatment appropriate to their status as unconvicted
persons." The Colombian Code of Criminal Procedure also states that "unless
a final guilty verdict has been executed, no person shall be detained in premises
established as sites for serving prison sentences."( 20
)

29. According to information received by the Commission, defendants without
sentences do not receive treatment corresponding to their status. In fact, in
some cases, they receive inferior treatment, as shall be demonstrated later
in this Chapter. In these cases, the fact that they are not formal prisoners
serving a definitive adjudicated sentence limits their access to available services.

E. DEFICIENCIES IN HEALTH SERVICES AND OTHER PROGRAMS FOR DETAINEES

30. In its visits to the prisons and through testimonies, the Commission received
numerous complaints regarding the lack of medical attention and of other programs
and services, including social rehabilitation programs in the detention centers
in Colombia. On April 15, 1998, then Director of the National Penitentiary and
Prison Institute ("INPEC"), Francisco Bernal, testified before Congress
and noted that there continues to be a significant deficit of specialized personnel
in psychiatric, social, pedagogic, health and legal areas in the prisons.( 21
)

31. The Minister of Health, María Teresa Forero, declared before Congress that,
as far as the provision of health services is concerned, "the floating
population" (those who have not been sentenced) have no right to continuous
health services. Consequently, these detainees are in a worse situation regarding
health services than that of the convicted prisoners. This situation conflicts
with Colombian law. Article 408 of the Penal Procedures Code explicitly states
that all detainees deprived of their freedom have a right to medical attention.
The Minimum Rules for the Treatment of Prisoners also state that all penitentiary
centers shall provide the services of physicians who shall care for the health
of all detainees.( 22 )

32. The Commission also received complaints, in the presence of the authorities,
regarding a case at the Cárcel Modelo prison wherein convicted prisoners who
were ill went without medical attention for 36 hours because the medical provision
contracts had not been renewed. The Commission also received credible evidence
from different facilities that the infirmaries place 25 to 30 prisoners at a
time, including injured and ill persons as well as AIDS-infected and psychiatric
patients, in a single cell which measures 4 x 8 meters.

33. The Commission would like to reiterate that it is the State's responsibility
to care for the physical and mental health of all persons in its custody. The
State, in its capacity as administrator of the detention facilities, is the
guarantor of the rights of the detained.( 23 ) If the State
does not fulfill its obligation, by action or omission, it violates Article
5 of the Convention and, in cases of deaths of prisoners, violates Article 4
of the Convention.

34. The Commission received information indicating that the National Plan for
Production Projects, which allows detainees to perform tasks in industrial or
agricultural facilities, reaches only 4,200 prisoners, less than 10% of the
prison population. However, the State has provided information indicating that
it has implemented programs and workshops for industrial work, metalworking,
baking, handicrafts, etc. which have benefited 10,253 prisoners. At the same
time, education programs for detainees include 9,400 prisoners receiving formal
education (24%), of which 6,000 are studying at a primary level and 3,400 at
a secondary level. Furthermore, 1585 (4.1%) receive informal education at the
secondary or higher education level (85 detainees). Another institutional program
which has been implemented is related to the prevention of drug addiction.

35. The Commission continues to be concerned by the fact that these programs
do not cover a significant percentage of the prison population.. In the case
of convicted prisoners, the ultimate objective of sentences which impose deprivation
of liberty is "the reform and social readaptation of the prisoners".(
24 ) An important part of this readaptation is ensuring that
convicted prisoners have the opportunity to work for pay and to study.( 25
) According to international standards, people detained in preventive prison
must also be given the opportunity to work.( 26 )

36. Colombian prison centers have programs for female detainees, for mothers
who are detained, for prisoners who are senior citizens and for indigenous detainees.
They also provide access, though limited, to psychiatric treatment and integral
drug addiction prevention programs.

F. INADEQUATE NOURISHMENT

37. The Commission received information indicating that the food provided to
the prisoners is inadequate. The cost of providing food to the prison population
is approximately 70,800,000 Colombian pesos per day, while the annual budget
in Colombia for this purpose is only slightly more than 2,400,459,000 pesos.(
27 )

38. This situation infringes international standards and domestic legislation.
The Minimum Rules for the Treatment of Prisoners state that every prisoner "shall
be provided by the administration . . . with food of nutritional value adequate
for health and strength."( 28 ) The Colombian Code of
Criminal Procedure also guarantees the detainees' right "to receive adequate
nourishment."( 29 )

G. RIGHTS OF DETAINEES TO MAINTAIN TIES WITH THEIR FAMILIES

39. The Commission has previously established the importance of the right of
detainees to maintain ties with their families.( 30 ) In this
sense, detainees generally have the right to receive visits by family members.(
31 ) This right must be even more encompassing for accused
persons, since their separation from society is preventive, not punitive.( 32
)

40. At the Cárcel Modelo prison, the Commission gathered information indicating
that the authorities do not allow detainees who have not been sentenced to see
their families for time periods of up to a month. This situation appears to
violate their rights. Furthermore, many of the prevailing conditions in Colombian
prisons infringe upon the right of prisoners to maintain contact with family
members. The Commission received reiterated information indicating that in some
prisons the detainees or their families must secretly pay for visitation authorization.
The security conditions in the detention centers also make family visitation
difficult.

41. The Commission was also made aware of the fact that, in order to prevent
the surreptitious introduction of drugs, a number of centers have implemented
a general vaginal inspection requirement for female visitors. Female family
members must consent to this examination in order to enter, often after having
waited from 7 to 10 hours for visitation authorization.

42. The Commission has established that such generalized vaginal inspection
systems constitute violations and has specified that the need for a vaginal
inspection must be evaluated in each specific case. The Commission also established
that the following four conditions must be present, in a particular case, for
the vaginal inspection to be considered legitimate: (1) the inspection must
be absolutely necessary to ensure safety in that particular case; (2) there
must not be any other alternatives; (3) the inspection must be authorized by
prior court order; (4) the inspection must only be performed by health professionals.(
33 ) Based on the information received, the Commission cannot
conclude that the Colombian State is performing the vaginal inspections in accordance
with these criteria.

H. CONSEQUENCES LIKELY TO CAUSE OTHER HUMAN RIGHTS VIOLATIONS

1. Riots

43. The general deplorable situation of Colombian prisons gives rise to consequences
with a propensity to lead to additional human rights violations. During the
first half of 1997, 60 riots occurred in Colombian prisons, giving rise to 8
inmate deaths and approximately 100 serious injuries. During one of these riots,
at the San Isidro National Prison in Popayán, 585 family members joined forces
with the prisoners and refused to leave the prison in order to call attention
to the demands of the 1,120 detainees from different regions of the country
who were serving sentences of more than 10 years.( 34 ) Fortunately,
negotiations were successful, a series of demands were accepted, and the occupation
ended peacefully.

44. Recently, following this tragic trend, on December 15, 1997, a guard was
killed and three people were hurt in an armed rebellion carried out by the wives
of the detainees in the Cárcel La Picota prison. In Popayán, six more deaths
occurred and 20 people were hurt during a riot on April 23, 1997. In Bogotá,
a riot on June 12, 1997 ended in 5 deaths and 20 injuries.

45. The riots at the Cárcel Modelo prison and the tragedies which occurred
during their suppression led the Government to enter into negotiations with
the detainees. The negotiations resulted in a series of measures to alleviate
the situation, including a change of officials. The Commission, in its visit
to said prison, witnessed the labor of the working group comprised of prisoner
representatives, formed for the purpose of studying and proposing solutions
to the legal and practical problems of life in prison. The Commission also learned
about the creation of a Human Rights Committee at the facility. The Commission
further learned of measures designed to prevent harassment and abuses and to
punish those responsible, including through the administrative retirement of
many guards. Finally, the Commission was informed of measures to improve public
services and security based on a new directive ordering that revenge measures
not be adopted against rioters.

46. Although these measures did not alleviate the overcrowding and its consequences,
they had at least temporarily calmed the prevailing climate of tension, explosions
of violence, and internal criminal activity. The pacification committees established
after the riot had also begun to yield results. According to the prison director,
"up until two months ago, it was not uncommon for there to be one or two
deaths per day in the prison, but in the last 50 days there has only been one
homicide."( 35 )

47. On April 14, 1998, detainees from two patios of the Cárcel Modelo prison
rebelled against the assassination of an internal leader and took "justice"
into their own hands, massacring those they believed to be the aggressors. The
massacre cost the lives of 15 prisoners. The assassinated internal leader was
the coordinator of one of the working groups created to reach agreement with
the Government after the riots. In prior weeks, other assassinations had occurred
which, according to the director, led up to the revenge killings. The weapons
used in these violent acts had been secretly brought into the prison.

2. Internal Violence

48. Not only do Colombian prisons not fulfill basic prisoner rehabilitation
and reeducation objectives, but they also serve as schools and recruiting spaces
for turning people towards crime, drug trafficking and armed subversion. This
situation is aggravated by the fact that there is currently an average of one
guard for every eight prisoners; this figure is as high as one guard for every
fourteen prisoners in some detention centers. According to INPEC and Ministry
of Justice studies, a ratio of one guard for every five prisoners is needed.(
36 )

49. The overcrowding and lack of services and productive opportunities, coupled
with the frustration of the prisoners detained due to simple procedural inefficiency,
creates a climate of internal violence which turns prison facilities into centers
for crime, increasing the likelihood of creating individuals who will confront
the law again after leaving prison. These conditions are also at least partly
responsible for "the alarming number of homicides, injuries, crimes against
property and escapes from these facilities, aggravated by the problem of drug
trafficking and drug consumption inside the prisons."( 37
)

50. According to information received by the Commission, 30 prisoners died
and 150 were injured between January and May, 1998. An example of this violence
is the attack which occurred at the Cárcel Modelo prison on April 7, 1998, during
which prisoners from another part of the prison entered a security pavilion
housing 60 detainees who needed special protection from attacks. The detainees
in the security pavilion were stripped of their scarce belongings and one of
them was hit and bruised.

3. The Lack of Control in the Prisons and its Effects on the Ability of the
Government to Suppress Unlawfulness

51. The Commission must express its concern about another of the consequences
of the ineffectiveness of the prison system in achieving its objectives. We
refer to the inability to maintain a capacity to repress or effectively contain
guerrilla groups, drug traffickers and paramilitary activity. The inability
of the State to control criminals and detained defendants places the rights
of the population in general at risk.

52. The current lack of control in the prison system and the influence that
illegal groups can have on this system can be seen in an episode which took
place on April 14, 1998 at the San Diego District Prison in Cartagena, where,
according to newspaper reports, "seven prisoners escaped in the midst of
a party involving drugs and alcohol, including five prisoners under investigation
for paramilitary activities."( 38 ) The prison director
admitted that every weekend there are parties in both men’s and women’s cells
during which the detainees consume drugs and alcohol before the passive watch
of the guards, stating that this irregularity is the product of rampant corruption
among guards (in that district).( 39 )

53. The fugitives accused of links to paramilitary groups had been detained
since February 28, following a joint operation by the Marines and the Police.
According to the Police commander, this escape ruined an investigation of paramilitary
groups begun in the Sucre and Bolívar Departments.

54. In another incident, in May 1998, the Revolutionary Armed Forces of Colombia
(Fuerzas Armadas Revolucionarias de Colombia - "FARC") attacked the
San Isidro prison in Popayán, enabling the escape of 330 people, many of them
guerrillas.( 40 )

I. MEASURES ADOPTED BY THE COLOMBIAN STATE

55. The Colombian State recognized, in its observations regarding this Report,
that the principal problems relating to persons deprived of their liberty are
prison overcrowding, joint imprisonment of defendants and convicted prisoners,
deficiencies in health services and other programs for detainees, and inadequate
nourishment of prisoners. The State noted that the Constitutional Court also
found these problems to exist in the prison system in its Decision T-153 of
April 28, 1998 and ordered the State to eradicate them. The State informed the
Commission that the Government of President Pastrana has developed a policy
plan for the prison system entitled Institutional Development Plan 1998-2002.

1. Legislation Designed to Alleviate Prison Overcrowding

56. In December 1997, Law 415, known as the alternative sanctions law, was
passed to attempt to alleviate the prison crisis, especially overcrowding, through
making norms regulating parole more flexible. Generally speaking, parole is
available to prisoners once they have served a specific period of their sentence
and have demonstrated good behavior. The law allows sentenced detainees who
are not eligible for parole to leave the prison without supervision for significant
periods of time. Providing certain conditions are met, these prisoners may leave
for weekends and for periods of up to 15 continuous days for a total of no more
than 60 days per year. These provisions do not apply to prisoners convicted
in the regional justice system.

57. This legislation will undoubtedly have a positive effect on prison overcrowding.
Nevertheless, it has been the object of harsh criticism for allowing individuals
already convicted of serious crimes to go free.

58. Also, new draft legislation introduced in 1998 would shorten the list of
crimes punished by imprisonment. Thus, convictions for certain crimes, such
as illegal possession of identification cards and incest, would be punished
by a monetary fine rather than by deprivation of liberty. This new legislation
would also broaden the category of crimes susceptible to early parole and would
shorten the maximum sentence available for certain crimes. Finally, the legislation
would allow certain convicted individuals to serve prison sentences in the hospital
or in their homes.

59. The Commission commends the State for seeking out innovative solutions
to the problem of prison overcrowding. Nonetheless, the Commission believes
that the Colombian Government should focus its efforts above all on adopting
stricter limits and controls on preventive detention and on speeding up criminal
trials. These measures would protect the rights of the prisoners and the population
in general most effectively.

60. Another priority for the State should be the construction of new prisons
and the improvement and expansion of current infrastructure. It is estimated
that the Colombian authorities would need more than 100 prisons equal to the
size of the Bogotá Cárcel Modelo prison in order to carry out all of the arrest
orders that have been issued.( 41 ) In this connection, the
State has informed the Commission that three new prisons will be constructed
with capacity for 1600 prisoners each. At the same time, the most important
existing prisons will be expanded and remodeled to provide an additional 13,122
prison beds in the next four years.

2. Increasing Capacity through Private Concessions

61. One of the strategies for solving the overcrowding problem is the grant
of private concessions for prison construction. The concessionaire would receive
an advance to be put towards construction and an annual sum thereafter for maintenance
and services. The first model to be built in Valledupar would receive 800 prisoners
who would reside in cells of at least 30 square meters, with common areas for
work and study activities, recreation, eating, legal assistance and visitation.
Security within the prison will be INPEC’s responsibility. Unfortunately, there
have been significant delays in the plans to construct these new prisons as
a result of problems and even corruption relating to construction bids.( 42
)

J. CONCLUSIONS

62. Based on the analysis undertaken by the Commission regarding what it was
able to directly identify in its visits to Colombian prisons and the information
it received from public authorities and non-governmental organizations, the
general conditions of prison establishments are inhumane and violate the American
Convention on Human Rights and other relevant international instruments. In
practice, the Colombian prison system is overwhelmed by prison overcrowding.
Furthermore, it has demonstrated that it is unable to separate accused individuals
from sentenced prisoners, to create the minimum security conditions needed to
prevent internal criminal activity in its own facilities and to design and implement
effective rehabilitation programs. This situation is aggravated by the rigidity
of criminal legislation, lengthy judicial proceedings, and a failure to use
security measures other than prison or to provide alternatives to serving complete
sentences.

63. The reforms to the criminal legislation that are being implemented are
positive. Likewise, measures for alleviating current specific situations do
exist. However, the scope of these measures must be broadened and greater political,
technical and financial energy must be invested to yield truly significant changes.

K. RECOMMENDATIONS

Based on the foregoing, the Commission makes the following recommendations
to the Colombian State:

1.

The State should adopt all measures needed to improve the situation in the
prison system and the treatment of detainees in order to fully comply with the
Political Constitution of Colombia, domestic legislation, and international
treaties ratified by Colombia. The Commission also recommends that the Minimum
Rules for Treatment of Prisoners and the related United Nations recommendations
be effectively applied as guidelines.
2.

The State should detain, prior to sentencing, only those persons who truly
constitute a danger to society or those whom it is suspected would not comply
with the requirements of the legal proceedings. The decision regarding preventive
detention should be made, in relation to each individual case, by the appropriate
jurisdictional authority, in accordance with legally-established criteria.
3.

The State should establish more expedient, less formalistic and more efficient
judicial processing mechanisms to speed up intermediate, final and parole-related
decisions, as well as decisions regarding other procedural benefits.
4.

The State should consider the possibility of reducing the number of crimes
included as crimes that lead to preventive detention or sentenced incarceration,
excluding from this category those crimes which, by their nature, offer better
guarantees of security and rehabilitation without detention.
5.

The State should take measures to increase the physical capacity of prison
facilities.
6.

The State should raise nourishment, living, hygiene, work, education and recreation
conditions to acceptable levels in compliance with international standards.
7.

The State should grant detainees the benefits and privileges to which they
are entitled, especially family visitation, recreation, education and parole,
in an efficient and timely manner.
8.

The State should separate detainees in preventive prison from sentenced prisoners,
who in turn should be grouped according to the type and severity of the crime
they have committed, the level of danger they represent, and their age.
9.

The State should create and maintain job opportunities and productive education
systems for detainees, as well as rehabilitation and social readaptation measures.
10.

The State should provide the prison system with the resources necessary to
act in accordance with international standards and laws in effect.
11.

The State should provide preventive programs, permanent negotiation systems,
personnel training, communication and information systems to prevent, minimize
or suppress riots and other violent situations while respecting legal rights.

Notes_________________

( 1 ) IACHR, Press Release 20/97.

( 2 ) Adopted August 30, 1995 and approved by Economic and
Social Council Resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of
May 13, 1977 [hereinafter Minimum Rules].

( 3 ) A/RES/43/173, December 9, 1988.

( 4 ) See, e.g., Arts. 28, 30.

( 5 ) See Art. 12.

( 6 ) See Art. 408.

( 7 ) IACHR, Press Release 20/97.

( 8 ) Diagnosis of the Prison Situation, Report of the Official
Commission, Second Commission of the Chamber of Representatives, Congressional
Gazette, July 22, 1997, Year VI No. 279 [hereinafter Prison Situation Diagnosis].

( 9 ) The Commission notes that, in accordance with Colombian
law, some senior public officials and others are detained in special facilities
and not in ordinary prisons. See Code of Criminal Procedure, Art. 403. This
difference in treatment is difficult to justify by security reasons alone or
other reasons legitimately related to the goals of their detention, due to the
existence of regular high security prisons, such as the Itagüí prison.

( 16 ) This situation results from the procedure in the regional
justice system pursuant to which the sentences of acquittal by regional judges
must be revised "in consultation" with the National Tribunal before
allowing the detainee to be set free.